Search Warrant Defense Lawyer explains warrants and rebuttable presumptions

Posted By Galluzzo & Arnone LLP || 12-Dec-2013

Search Warrants

In New York, a valid search warrant signed by a judge can give law enforcement officers the right to search your home or place of business (among other places) for evidence of criminal conduct. Sometimes search warrants are obtained after long criminal investigations, and sometimes they are applied for quickly in emergency cases in which law enforcement fears that evidence will be destroyed. A judge can sign a search warrant where he believes, based upon sworn affirmations made to him by law enforcement and/or civilian informants, that there is probable cause to believe that the targeted location contains evidence of criminality.

Most commonly, search warrants obtained by officers from the NYPD are sought for firearms or narcotics (though the list of possible reasons for a search warrant is endless). With respect to narcotics-related search warrants, police officers will typically not apply for a warrant until they can affirm to a judge that some police officer or police informant has either seen or purchased narcotics inside the location, and done so recently. (When information about possible contraband in a location is not recent, it is considered “stale” and insufficient to justify a search warrant.)

One interesting question that usually arises after search warrants have been executed and contraband discovered is whether the right people have been charged with possessing the illegal items. New York state law provides a “firearm presumption” as well as a “drug presumption” in these contexts. Penal Law chapter 220 provides the following rebuttable presumption about the illegal possession of drugs:

The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found; except that such presumption does not apply to any such persons if (a) one of them, having obtained such controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (b) one of them has such controlled substance upon his person. (Penal Law Section 220.25).

Similarly, Penal Law chapter 265 provides the following rebuttable presumption about the possession of a firearm:

The presence in any room, dwelling, structure or vehicle of any machine-gun is presumptive evidence of its unlawful possession by all persons occupying the place where such machine-gun is found. (Penal Law Section 265.15).

Essentially, these presumptions mean that the police will definitely arrest everyone they find inside the same room as contraband during the execution of a search warrant. However, they are likely to arrest everyone in the home (not just the room), as well as those people living in the home but not in the home at the time of the warrant, based upon a theory of “constructive possession”. A person is not necessarily guilty simply because they may have been in the room or in the home at the time that illegal contraband was discovered in the home, as these presumptions are rebuttable with evidence that the accused was either unaware of the contraband or did not exercise any dominion or control over the items.

Search warrants can also be executed to find clothing that a suspect was reported as having worn whilst committing a crime, illegal computer data on an electronic device (such as indecent materials or child pornography or stolen personal identifying information or trade secrets) or stolen property, among many other things.

If you or a loved one have been arrested following a search warrant of your home or place of business, it’s very important that you immediately contact an experienced criminal defense attorney at Galluzzo & Arnone LLP. Their team of three former prosecutors has been involved in writing and applying for countless search warrants, and they are very familiar with the police procedures usually employed in anticipation of applying for one. Most importantly, though, they have experience challenging the bases for the issuance of search warrants as well as defending individuals wrongfully accused of crimes for simply being in the wrong place at the wrong time.

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